CAROLINE ENGLAND v. CARRIE ANN MICHELLE JACKSON
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RENDERED: October 31, 2003; 10:00 a.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2002-CA-000548-MR
CAROLINE ENGLAND
APPELLANT
APPEAL FROM CLAY CIRCUIT COURT
HONORABLE R. CLETUS MARICLE, JUDGE
ACTION NO. 99-CI-00395
v.
CARRIE ANN MICHELLE JACKSON
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
JUDGE.1
BUCKINGHAM AND JOHNSON, JUDGES; AND MILLER, SENIOR
JOHNSON, JUDGE:
Caroline England has appealed from an order of
the Clay Circuit Court entered on February 1, 2002, which found
that she had failed to establish by clear and convincing
evidence that she was a de facto custodian under KRS2 403.270(1),
and therefore awarded custody of Tanner Blake Gregory to his
1
Senior Judge John D. Miller sitting as Special Judge by assignment of the
Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and
KRS 21.580.
2
Kentucky Revised Statutes.
biological mother, Carrie Jackson, the appellee herein.
Having
concluded that the trial court’s factual findings were not
clearly erroneous, we affirm.
While the parties to this child custody dispute have
somewhat differing accounts regarding the events following
Tanner’s birth, there is substantial evidence of record to
support the following facts as found by the trial court.
Jackson gave birth to Tanner on November 10, 1998, when she was
17 years old.
England is the maternal grandmother of Chad
Gregory, Tanner’s biological father.3
During the first several
months following Tanner’s birth, Jackson and Gregory resided
with the child in Whitehouse, Tennessee, at the home of
Gregory’s father.4
On or around March 7, 1999, England, while on a visit
to Whitehouse, asked Jackson if she could take Tanner back to
England’s home in Manchester, Kentucky, for a short visit.5
Jackson agreed, and told England that she and Gregory would come
to pick Tanner up in Kentucky on the following weekend.
3
Jackson and Gregory were never married.
daughter.
4
For
Gregory’s mother, Pat, is England’s
Gregory’s father Tommy and his mother Pat are divorced.
5
According to England’s testimony, her daughter Pat and Pat’s daughter
(England’s granddaughter) Miranda had been helping Jackson and Gregory care
for Tanner in Tennessee. England testified that she wanted to give Jackson,
Gregory, Pat, and Miranda a “break” by taking Tanner back to Kentucky for a
short visit. Jackson testified that she allowed England to take Tanner to
Kentucky out of her concern at that time for Tanner’s safety. According to
Jackson, Gregory had on occasion been violent toward her and Tanner and she
wanted time to try and work things out between Gregory and herself.
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reasons that are not entirely clear from the record, Jackson and
Gregory were unable to travel to England’s home until two weeks
later, around March 20, 1999.
During the couple’s visit to England’s home in
Kentucky, Tanner became ill, and Jackson and England took the
child to the emergency room.
After doctors at the emergency
room advised Jackson to take Tanner to his pediatrician in
Tennessee, Jackson and Gregory returned to Whitehouse with the
child on March 21, 1999.
The following day, Jackson attempted
to take Tanner to his pediatrician in Tennessee, but she was
unable to get an appointment because of an outstanding bill that
Jackson had not paid.
Thus, Jackson asked England if she could
get Tanner an appointment with Dr. Edward Moynahan, who was the
pediatrician for England’s adopted grandson, Clay.6
Dr. Moynahan
agreed to see Tanner, and on March 24, 1999, Pat (England’s
daughter) and Jackson traveled to Columbia, Kentucky, where they
met England.
England, Pat, and Jackson then took Tanner to Dr.
Moynahan’s office.
After Tanner’s initial office visit, Dr. Moynahan told
Jackson that he would like to have follow-up visits with Tanner
in the upcoming weeks.
Jackson and Tanner stayed at England’s
home until April 6, 1999, when Tanner was once again seen by Dr.
Moynahan.
6
Following this second appointment, Jackson and Tanner
Clay lived with England in her home in Manchester, Kentucky.
-3-
returned to Gregory’s father’s home in Whitehouse.
A few days
later, while England was visiting relatives in Tennessee,
Jackson asked England if she would take Tanner to his next
appointment with Dr. Moynahan on April 12, 1999.
England agreed
and returned to Kentucky with the child, but Jackson stayed
behind in Tennessee.
During the next few weeks, England traveled back and
forth between Kentucky and Tennessee visiting various family
members.
England testified that during her visits to Tennessee,
she would drop Tanner off with Jackson, but that Tanner would
always return with her to Kentucky at the end of her visits.
Jackson stayed in Tennessee until the first part of May 1999,
when she came to live with England in Kentucky for approximately
three weeks.
During this time period, Jackson was unsuccessful
in her attempt to find a job in Kentucky, but she was able to
apply for and receive food stamps and WIC benefits for Tanner.
Around May 22, 1999, after Jackson had expressed a
desire to return to Tennessee, England took Jackson back to
Gregory’s father’s house in Whitehouse.
However, Tanner
continued to live in Kentucky with England.7
During this same
time period, the relationship between Jackson and Gregory soured
7
Jackson testified that because she did not at that time have a driver’s
license, she wanted to move back to Tennessee where she believed it would be
easier to find a job where she could either walk to work, or have someone
drive her.
-4-
and the couple “broke up.”
Shortly after returning to
Tennessee, Jackson found a job at a gas station where England’s
daughter Pat was also employed.
According to Jackson, on approximately June 18, 1999,
she phoned England from Tennessee and told England that she
wanted Tanner to come and live with her in Tennessee
permanently.
Jackson testified that England gave her the “run
around” and that England ultimately refused to turn Tanner over
to her.
Jackson further testified that she traveled to Kentucky
to get Tanner, but that she was unable to locate England in
order to do so.
On July 2, 1999, England filed a petition for
temporary custody in Clay District Court, alleging that Jackson
had abandoned Tanner.
England’s motion for temporary custody
was eventually granted.8
As part of its order granting England
temporary custody, Jackson was granted visitation rights on
every other weekend.
On November 5, 1999, Jackson filed a
petition for custody in Clay Circuit Court.
In her answer,
England filed a counter-petition for custody on November 15,
1999.
A final hearing on this matter was held before the
Domestic Relations Commissioner on May 7, 2001, after which the
Commissioner made recommended findings of fact and conclusions
of law.
On February 1, 2002, after reviewing the Commissioner’s
8
The exact date of the entry of the order granting England temporary custody
is not clear from the record.
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recommendations, the trial court found that England had failed
to meet her burden of proof to show that she was a de facto
custodian under KRS 403.270.
Jackson custody of Tanner.
Therefore, the trial court awarded
This appeal followed.
England’s sole claim of error on this appeal is that
the trial court erred in finding that she had failed to
establish her status as a de facto custodian for Tanner by clear
and convincing evidence.
We disagree.
We begin our analysis by noting the appropriate
standard of review on appeal.
In Sherfey v. Sherfey,9 this Court
stated:
“Findings of fact shall not be set aside
unless clearly erroneous, and due regard
shall be given to the opportunity of the
trial court to judge the credibility of the
witnesses.” A factual finding is not
clearly erroneous if it is supported by
substantial evidence. “Substantial
evidence” is evidence of substance and
relevant consequence sufficient to induce
conviction in the minds of reasonable people
[footnotes omitted].
The statute in question states, in pertinent part, as follows:
(1) (a) As used in this chapter and KRS
405.020, unless the context requires
otherwise, "de facto custodian" means a
person who has been shown by clear and
convincing evidence to have been the primary
caregiver for, and financial supporter of, a
child who has resided with the person for a
period of six (6) months or more if the
child is under three... Any period of time
9
Ky.App., 74 S.W.3d 777, 782 (2002).
-6-
after a legal proceeding has been commenced
by a parent seeking to regain custody of the
child shall not be included in determining
whether the child has resided with the
person for the required minimum period.10
In the case sub judice, we conclude that the trial court’s
finding that England failed to establish herself as a de facto
custodian by clear and convincing evidence was supported by
substantial evidence and therefore not clearly erroneous.
In Consalvi v. Cawood,11 this Court previously
explained the meaning of the term “primary caregiver” under KRS
403.270:
The de facto custodian statute does not,
contrary to Cawood's position at oral
argument, intend that multiple persons be
primary caregivers. The court's finding that
he was "a primary caregiver" and "a
financial supporter" is not sufficient to
establish that he was indeed "the primary
caregiver" within the meaning of the
statute. It is not enough that a person
provide for a child alongside the natural
parent; the statute is clear that one must
literally stand in the place of the natural
parent to qualify as a de facto custodian
[emphases original].
In the case at bar, England first began periodically
taking care of Tanner in early March 1999.
It is not disputed
that from around March 7, 1999, through early May 1999, Tanner
10
KRS 403.270; see also Diaz v. Morales, Ky.App., 51 S.W.3d 451, 455
(2001)(stating that “[a]lthough there is yet little case law interpreting KRS
403.270, the standard of proof required to establish a de facto custodial
relationship is high -to wit- it must be demonstrated by clear and convincing
evidence that the third party is the primary care giver and financial
supporter for the stated time period [footnote omitted]).
11
Ky.App., 63 S.W.3d 195, 198 (2001).
-7-
spent part of his time in the exclusive care of Jackson in
Tennessee, part of his time in the exclusive care of England in
Kentucky, and part of his time in the care of Jackson and
England in Kentucky.
It is also not disputed that beginning in
early May 1999, Jackson and Tanner resided with England for
approximately three weeks until around May 22, 1999.
The
parties disagreed with respect to the extent of Jackson’s
“caregiver” activities during these three weeks.
For example,
England testified that Jackson offered little to no assistance
in caring for Tanner.
On the other hand, Jackson testified that
she played with, fed, cleaned, and generally took care of Tanner
while she was living in England’s home.
Hence, due to the fact
that both England and Jackson had periods of exclusive custody
of Tanner from early March 1999 through early May 1999, and
because of the parties’ conflicting testimony regarding the
three weeks in May when Jackson and Tanner lived with England,
the trial court found that England had failed to establish by
clear and convincing evidence that she was “the primary
caregiver” for these time periods.
Since this factual finding
is supported by substantial evidence in the record, we cannot
say that this finding was “clearly erroneous.”12
12
See Black Motor Co. v. Greene, Ky., 385 S.W.2d 954, 956 (1964)(holding that
“[i]f supported by substantial evidence, [a trial] court's finding of fact is
not clearly erroneous”).
-8-
Thus, the earliest possible date that England could
have become Tanner’s “primary caregiver” would have been when
Jackson left Tanner with England on or around May 22, 1999.
Assuming, arguendo, that England did in fact become Tanner’s
“primary caregiver” after Jackson returned to Tennessee in late
May 1999, England still cannot establish herself as a de facto
custodian under KRS 403.270.
The statute specifically states
that the time period after a parent has commenced legal
proceedings to regain custody “shall not be included” in
determining whether the requisite time period element has been
satisfied.
Jackson filed her petition seeking to regain custody
of Tanner on November 5, 1999.
Hence, even if England became
Tanner’s “primary caregiver” after Jackson returned to Tennessee
on or around May 22, 1999, six months had not yet elapsed when
Jackson filed her petition for custody on November 5, 1999.
Therefore, we cannot conclude the trial court “clearly erred” in
finding that England had failed to establish by clear and
convincing evidence that she met the definition of a de facto
custodian under KRS 403.270.
Based on the foregoing, the order of the Clay Circuit
Court is affirmed.
ALL CONCUR.
-9-
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
John T. Aubrey
Manchester, Kentucky
Robert Stivers
Manchester, Kentucky
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